Posted by: Patricia Salkin | February 27, 2016

PA Appeals Court Holds Construction of Fence Around Athletic Fields Located on School Property Would Not Amount to an Expansion of Property’s Current Accessory Athletic Use

The Wyomissing Area School District applied for zoning permit to erect a fence around its athletic fields. In this case, the School District appealed from the March 6, 2015, order of the Court of Common Pleas of Berks County, which affirmed the decision of the Zoning Hearing Board of Wyomissing Borough (ZHB). The ZHB denied the School District’s zoning permit application and miscellaneous permit application to erect the fence and dismissed the School District’s complaint in mandamus and motion for peremptory judgment in mandamus. The ZHB reasoned that because the School District never received approval for the preexisting, nonconforming school use, any expansion of an accessory athletic use would require an exception under section 403 of the Ordinance.

The School District first argued that the ZHB committed an error of law or abused its discretion in finding that the fence would expand the Property’s current uses and that the School District was required to request a special exception under section 403 of the Ordinance. However, the record contained no evidence that the fence itself would relate specifically to either a school or an athletic purpose or would facilitate school or athletic activities beyond those that already exist on the Property. Additionally, section 614 of the Ordinance expressly permitted fences in R–1 Residential Zoning Districts such as this.

The School District next argued that the ZHB erred in concluding that the School District was required to request a special exception under section 703.5 of the Ordinance because the fence would create a new “stadium use.” The ZHB found that the Property already contained athletic fields, bleachers, a press box, a concession stand, and a fieldhouse; the addition of the fence would not change the nonconforming use, or create a “stadium” as the word is defined. Additionally, there was nothing to suggest that this fence would actually increase traffic congestion, or give off noxious fumes, or any other safety risks. Moreover, neither aesthetic reasons nor the conservation of property values or the stabilization of economic values were sufficient to promote the health or the morals or the safety or the general welfare. These aesthetic factors were not enough to justify the ZHB’s decision. Accordingly, the court reversed, finding the ZHB erred in denying the Applications under section 612 of the Ordinance.

Wyomissing Area School Dist. v. Zoning Hearing Bd. of Wyomissing Borough, 128 A.3d 851 (PA Cmwlth 11/25/2015)

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